Coronavirus and the Child Arrangements Orders. What now?

06 Apr

Given the state of the world, it is little wonder that existing child arrangements orders are becoming a low priority in some households. Some parents are confused by what they hear on the news and social media. But for every resident parent that loses sight of their child arrangements order, there is a non-resident parent struggling to make sure that their children continue to have regular contact with them. A modicum of routine would surely be in the child’s best interest, together with the security they would receive from seeing that their parents are healthy, right? You would be forgiven for thinking so, but as is sadly too often the case, the children who should be put at the centre of these things are instead simply caught in the middle.

 

So what should we be doing about this? Well, to use a well-worn phrase, this calls for a common-sense approach, and one that puts the child first.

 

For those who are able to continue with their child arrangements order to its full extent, that may be the best outcome for the children involved. Children get to keep their routine and see both of their parents at a time when everything else is strange and disrupted. For those parents continuing with direct contact the current guidance is clear that it is acceptable to continue to move children between households. This creates an exception to the stay at home requirement. However, what it doesn’t do is say that children “must” be moved between their parents’ houses.

 

There are legitimate reasons why parents may be unable to stick to the letter of their child arrangements order, such as work commitments for key workers, ill-health, the need to self-isolate etc, and those parents are encouraged to agree to “further or alternative contact”, that helpful catch-all at the end of every child arrangements order. The key to this is communication between the parents to see whether there is a way to work through this.

 

Those children who see their parent through supported or supervised contact, particularly at a contact centre, are likely to be the worst affected where contact centres are closed. Where possible, alternative methods of supporting or supervising contact should be considered by the parents. For example, this could be through another member of the non-resident parent’s household who could support or supervise contact either in the community or at the parent’s home. Provided that the supervisor is from within the same household, this would not be against the social isolation guidelines. We can still take children outside into the community to play, and so contact in the community can still take place provided that those involved are family members in the same household as the parent, and distance is kept from other groups of people.

 

Some creative thought should go into how that contact can be taken up by skype or facetime if it is necessary to suspend direct contact. The expectation of the court will certainly be that consideration is given to how missed direct contact can be compensated in some way at the end of the lockdown period. This doesn’t necessarily mean a like for like replacement of contact – that may not be practical. It may mean additional time during holidays, for example, or some extra weekends. Whatever the alternative arrangements are, they should be recorded in writing. A text message or e-mail is sufficient for this purpose.

 

Unfortunately, not all parents can agree. Any differences in risk-perception between the parents is going to be exacerbated by coronavirus, and anxieties heightened. Even if one parent thinks that it is safe for contact to carry on, it may be reasonable for the other parent to be worried. Where the parents cannot agree, then one or other parent is entitled to exercise their parental responsibility to unilaterally vary the child arrangements order if they have good reason to do so. This applies at all times, not just in the time of coronavirus, and the expectation of the court is that parents should exercise their parental responsibility in the best interests of the children.

 

In the usual course of things, a parent veering away from a child arrangements order without the consent of the other parties should make a prompt application to court to vary the order. Otherwise, they can expect an enforcement application to follow fairly swiftly. In the current climate, any variation or enforcement applications are likely to be a low priority for the courts. It seems that only enforcement dealing with the safety of the child will get a listing any time soon. Unless urgent, such applications are unlikely to be heard until the burden on the courts is eased, potentially when the court buildings are again open for hearings. A hearing dealing with evidence as to whether or not the parent on the receiving end of an enforcement application should carry out an unpaid work requirement may not, in any event, be suitable for a telephone hearing.

 

Sadly, there will be a small number of cases where parents were already resistant to their children having contact with the non-resident parent. They will no doubt see coronavirus as the mother of all excuses. They would be wise not to. This situation is unprecedented. It falls outside of the experience of all of us. Only time will tell how the courts respond, but it seems likely that the court will look at whether the parent in question behaved reasonably and sensibly in light of the official guidance and Stay at Home Rules in place at the time, and in light of any evidence in support about the child or the families’ health or circumstances. Resident parents making a variation to child arrangements orders without the agreement of the non-resident parent should make sure that they take note of the rules and guidance in place at the time, and gather the evidence that they may need to support their actions.

 

Those engaged in parental conflict are unlikely to be able to use coronavirus as an excuse without further justification. Unless and until the government specifically stops the movement of children between parents, parents should not assume that coronavirus is a legitimate excuse per se. Parents locked in conflict should strongly resist the temptation to take advantage of the situation.

 

The parent feeling wronged should consider carefully whether to pursue an enforcement application or not, and should ask themselves whether it is necessary to do so. If the arrangement can be brought back on track at the earliest opportunity, and some sort of compensatory arrangement reached for the children to have additional contact later on, this may be the best solution. Careful thought should be given as to whether the matter ought to be taken back to court with the inevitable conflict that will arise.

 

What parents should be asking themselves is this: “What will this child, as an adult, say to me about this time and how I handled things?” The coronavirus outbreak doesn’t mean that contact needs to stop, but where it leads to the letter of a court order being varied, the spirit of the order should be maintained by making safe alternative arrangements for the children concerned. Children, with some tragic exceptions, seem to be impervious to coronavirus, getting only minor symptoms if they get any at all. They should not become coronavirus’ biggest victims through unchecked parental conflict.

 

Article by Catherine Gee – Nothing in this article is intended to be legal advice. Readers may contact clerks@stourchambers.co.uk should they need formal legal advice on their particular circumstances.

This set comes recommended for its members' expertise in children and matrimonial finance matters. The children cases range across both public and private law work, and include those concerning non-accidental injury, sexual abuse and fabricated illness. On the financial side, the set's barristers demonstrate the ability to act in substantial financial remedies cases as well as Schedule 1 and TOLATA matters.

~ Chambers UK Bar Guide 2020

Specialising in matrimonial finance and children matters. Members appear in the regional courts as well as the High Court and the Court of Appeal. They often act in financial remedy proceedings relating to farms, companies, properties and other assets. In addition they are adept at dealing with serious child care allegations including physical abuse and death.

~ Chambers UK Bar Guide 2019

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